OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

November 52002 

Mr. Richard F. Reynolds 

Executive Director 

Texas Workers’ Compensation Commission 

Southfield Building, MS-4D 

4000 South IH-35 

Austin, Texas 78704-7491 

Opinion No. JC-0572 

Re: Whether a Workers’ Compensation 

Commission rule requiring that written 

communications be sent to both a claimant and 

the claimant’s attorney creates an exception to 

Rule 4.02(a) of the Texas Disciplinary Rules 

of Professional Conduct, which prohibits an 

attorney from communicating with a person 

who is represented by counsel (RQ-05 5 1 - JC) 

Dear Mr. Reynolds: 

You ask whether a Workers’ Compensation Commission (the “Commission”) rule requiring 

that written communications be sent to both a claimant and the claimant’s attorney creates an 

exception to Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, which prohibits 

an attorney from communicating with a person who is represented by counsel. We conclude that the 

Commission rule creates an exception to the Rule 4.02(a) prohibition. 

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct prohibits an attorney 

from communicating with a person who is represented by counsel as follows: 

In representing a client, a lawyer shall not communicate or 

cause or encourage another to communicate about the subject of the 

representation with a person, organization or entity of government the 

lawyer knows to be represented by another lawyer regarding that 

subject, unless the lawyer has the consent of the other lawyer or is 

authorized by law to do so. 

TEX. DISCIPLINARY R. PROF’L CONDUCT 4.02(a), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. 

G app. A (Vernon 1998) (TEx. STATE BARR. art. X, 8 9); see also id. cmt. 2 (“Paragraph (a) of this 

Rule is directed at efforts to circumvent the lawyer-client relationship existing between other 

persons, organizations or entities of government and their respective counsel.“). This rule, adopted 

from the Model Rules of Professional Conduct, is “meant ‘to prevent lawyers from taking advantage 

of uncounselled lay persons and to preserve the integrity of the lawyer-client relationship.“’ 

Graham v. United States, 96 F.3d 446, 449 (9th Cir. 1996) (quoting the Model Rules of Prof. 

Conduct R. 4.2 cmt. (1992)). 
Mr. Richard F. Reynolds - Page 2 (JC-0572) 

You ask about the interplay of this attorney disciplinary rule and a procedural rule 

promulgated by the Commission. As a general matter, the Commission is charged with adjudicating 

workers’ claims for compensation for work-related injuries and is authorized to adopt rules. 

See TEX. LAB. CODE ANN. ch. 410 (Vernon 1996 & Supp. 2002) (adjudication of disputes); 

id. 88 402.061 (Vernon 1996) (“The commission shall adopt rules as necessary for the 

implementation and enforcement of this subtitle.“), 410.157 (“The commission shall adopt rules 

governing procedures under which contested case hearings are conducted.“). The Commission has 

adopted two rules dealing with communications between parties. Rule 102.4 provides “general rules 

for non-commission communications” and rule 102.5 provides “general rules for written 

communications to and from the commission.” See 28 TEX. ADMIN. CODE $5 102.4,102.5 (2002). 

Rule 102.4(a) provides that all written communications to a claimant shall be sent to the most recent 

address or facsimile number supplied by the claimant. See id. 8 102.4(a). Rule 102.4(b), the rule 

at issue in your request, provides as follows: 

After an insurance carrier, employer, or health care provider 

is notified in writing that a claimant is represented by an attorney or 

other representative, copies of all written communications related to 

the claim to the claimant shall thereafter be mailed or delivered to the 

representative as well as the claimant, unless the claimant requests 

delivery to the representative only. 

Id. fj 102.4(b); see also id. 8 102.5(a) (“After the Commission is notified in writing that a claimant 

is represented by an attorney or other representative, all copies of written communications to the 

claimant shall thereafter be sent to the representative as well as the claimant, unless the claimant 

requests delivery to the representative only. However, copies of settlements, notices setting benefit 

review conferences and hearings, and orders of the Commission shall always be sent to the claimant 

regardless of representation status.“). 

The Commission adopted the rule 102.4(b) requirement that claimants receive copies of 

communications to ensure that all participants are informed regarding the status of a claim. 

See 24 Tex. Reg. 6488’6489 (1999) (T ex. Workers’ Compensation Comm’n) (“Amendments to 

subsection (b) require employers and health care providers as well as carriers, when notified by the 

claimant that the claimant has a representative, to mail or deliver copies of all written 

communications associated with the claim to the claimant as well as to the claimant’s representative. 

The previous subsection only required carriers to include the claimant’s representative in all written 

communications. These changes will help ensure that all participants are informed regarding the 

status of a claim.“); see also id. at 6499-500 (codified as an amendment to 28 TEX. ADMIN. CODE 

8 102.4(b)) (Tex. Workers’ Compensation Cornm’n). 

You inform us that an attorney for an insurance carrier has indicated that this rule, which 

requires an insurance carrier, employer, or health care provider to send copies of all written 

communications related to a claim to both the claimant and the claimant’s attorney, “is placing 

attorneys who represent carriers in a difficult and unfair position” because compliance with the 
Mr. Richard F. Reynolds - Page 3 (JC-0572) 

Commission rule violates Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct.’ The 

Commission takes the position that its rule provides an exception to Rule 4.02(a). We agree. 

We conclude that the Commission rule is “law” authorizing an attorney to send a written 

communication to a person who is represented by counsel and that it provides an exception to Rule 

4.02(a). Again, Rule 4.02(a) bars communications with clients “unless the lawyer has the consent 

of the other lawyer or is authorized by law to do so.” TEX. DISCIPLINARY R. PROF'L CONDUCT 

4.02(a) (emphasis added). In Lee v. Fenwick, 907 S.W.2d 88 (Tex. App.-Eastland 1995, writ 

denied), appellees argued that notice to appellants’ attorney satisfied a statutory notice requirement 

that “defendant receive written notice” of a claim and that prejudgment interest began to accrue on 

the date the attorney received notice. Appellees argued that Rule 4.02 precluded their attorney from 

providing notice directly to the defendants. See id. at 90. The court disagreed, concluding that the 

statutory notice provision required notice to the defendant and thus provided an exception to Rule 

4.02: “Since [the statute] requires written notice to the defendant, an attorney would not violate 

Disciplinary Rule 4.02 by sending the statutory notice.” Id. 

A procedural notice or service requirement imposed by an administrative rule rather than a 

statute may also provide an exception to Rule 4.02(a). Cf: ABA Con-m. On Ethics and Prof 1 

Responsibility, Formal Op. 396 (1995) (“The ‘authorized by law’ exception to the Rule is also 

satisfied by a constitutional provision, statute or court rule, having the force and effect of law, that 

expressly allows a particular communication to occur in the absence of counsel - such as court rules 

providing for service of process on a party.“). In Texas, valid rules and regulations promulgated by 

an administrative agency acting within its statutory authority have the force and effect of legislation. 

See Lewis v. Jacksonville Bldg. & Loan Ass ‘n, 540 S.W.2d 307, 310 (Tex. 1976). We have no 

reason to believe that the Commission’s rule of procedure exceeds its statutory authority or was not 

properly adopted. See B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex. 1978) 

(“Generally, administrative regulations only have the full force and effect of law when: (1) a statute 

exists which specifically authorizes the issuance of rules and regulations by the agency; (2) the rule 

or regulation adopted is within the authority of the agency; and (3) the rule or regulation is adopted 

according to the procedure prescribed by statute.“) (holding that federal agency safety manual did 

not have statutory status because it did not meet these criteria); TEX. LAB. CODE ANN. $3 402.061 

(Vernon 1996) (“The commission shall adopt rules as necessary for the implementation and 

enforcement of this subtitle.“), 4 10.157 (“The commission shall adopt rules governing procedures 

under which contested case hearings are conducted.“); see also United States ex rel. OKeefe v. 

McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998) (concluding that United States 

Department of Justice rule purporting to authorize United States attorneys to contact persons 

represented by counsel was not authorized by statute and concluding that contacts made pursuant to 

rule were not “authorized by law” for purposes of state disciplinary rule). Furthermore, this 

procedural rule, which serves to keep claimants fully informed of the status of their claims through 

the receipt of written communications that must also be sent to their attorneys, see 24 Tex. Reg. 

6488’6489 (1999) ( ex pl aining purpose of amendment to rule), does not appear to provide attorneys 

‘Letter from Craig H. Smith, Director, Legal Services, Texas Workers’ Compensation Comm’n, to Honorable 

John Comyn, Texas Attorney General at 1 (May 15,2002) (on file with Opinion Committee). 
Mr. Richard F. Reynolds - Page 4 (JC-0572) 

with an opportunity to take advantage of claimants or to undermine claimants’ relationships with 

their attorneys. Accordingly, we conclude that the Commission rule requiring that written 

communications be sent to both a claimant and the claimant’s attorney authorizes an insurance 

carrier’s attorney to send copies of written communications related to the claim to a claimant who 

is represented by counsel and creates an exception to Rule 4.02(a) of the Texas Disciplinary Rules 

of Professional Conduct. 

Finally, we note that Rule 4.02(a) bars communications with clients “unless the lawyer has 

the consent of the other lawyer or is authorized by law to do so.” TEX. DISCIPLINARY R. PROF’L 

CONDUCT 4.02(a) (emphasis added). The comment to the rule states that “[clonsent may be implied 

as well as express, as, for example, where the communication occurs in the form of a private 

placement memorandum or similar document that obviously is intended for multiple recipients 

and that normally is furnished directly to persons, even if known to be represented by counsel.” Id. 

cmt. 2. The Commission rule provides all parties with notice that written communications will be 

sent to both the claimant and the claimant’s attorney, unless the claimant opts to have 

communications sent only to his or her attorney. See 28 TEX. ADMIN. CODE 9 102.4(b) (2002). 

Given this notice, we believe that an insurance carrier’s attorney who sends copies of written 

communications related to a claim to a claimant who is represented by counsel and who has not 

opted to have the communications sent only to counsel has implied consent of the claimant’s counsel 

to do so. 
Mr. Richard F. Reynolds - Page 5 (JC-0572) 

SUMMARY 

A Texas Workers’ Compensation Commission rule requiring 

that written communications related to a claim be sent to both a 

claimant and the claimant’s attorney, see 28 TEX. ADMIN. CODE 

9 102.4(b) (2002)’ creates an exception to Rule 4.02(a) of the Texas 

Disciplinary Rules of Professional Conduct, which prohibits an 

attorney from communicating with a person who is represented by 

counsel, see TEX. DISCIPLINARY R. PROF’L CONDUCT 4.02(a) 

(precluding communications with a person represented by counsel 

unless lawyer “is authorized by law to do so”). 

N CORNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN DENMON GUSKY 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee